On 18 August 2014, the Prime Minister of Georgia made a statement about the bill initiated by the Ministry of Defence in the Parliament: “This is an ordinary workflow in order to align all the laws with the new Constitution. I don’t understand what’s so special about it. I am speaking of the amendments that have been implemented since the new Constitution came into force. There is no such thing as restricting one’s (Presidential) rights and strengthening another’s (Prime Ministerial). This is pure speculation.”FactCheck
took interest in the accuracy of this statement.
In April 2014, the Ministry of Defence introduced a packet of legislative amendments to the Parliament. More precisely, it refers to the following bills:-
On Defence of Georgia-
On amendments to be made in the Law of Georgia on Mobilisation-
On amendments to be made in the Law of Georgia on the Structure, Powers and Rule of Activity of the Government-
On amendments to be made in the Law of Georgia on Public Service-
On amendments to be made in the Law of Georgia on State Borders of Georgia-
On amendments to be made in the Law of Georgia on the Fight against Terrorism
The abovementioned bills refer to such presidential power as being the Supreme Commander-in-Chief of the Georgian Armed Forces. The position of the Government on this matter is made clear by the statement of the Parliamentary Secretary of the Government, Shalva Tadumadze: “The rank of ‘Commander-in-Chief’ is of a symbolic nature and his functions are limited to giving orders in the case of war. That is an order for the Armed Forces which, we can say, is one word – act. After the Commander-in-Chief gives the order, those persons who implement the action are, of course, accountable to the one who gave the order. That’s it for the Commander-in-Chief’s functions, both constitutionally and non-constitutionally, in general.”According to Article 69 of the Constitution of Georgia: “The President of Georgia is the Supreme Commander-in-Chief of the Armed Forces.” FactCheck
analysed the extent to which Georgia’s Supreme Commander-in-Chief’s function is only symbolic and the necessity in this case to reduce the powers of the President with the aim of aligning the laws with the new Constitution.
It is noteworthy that the Constitution of Georgia is not limited to a general entry stating that the President is the Supreme Commander-in-Chief of the Armed Forces. The exact powers of the President in this sphere are given in the Constitution as well. More precisely, in the case of an armed attack against Georgia, the President declares a ‘state of war’ and, under certain circumstances, signs a truce or declares a state of emergency on the entire territory or some part of the country. Also, during the state of war or emergency, he issues decrees that have the power of law, approves the structure of the military forces, makes a decision on using the military forces during the state of emergency or war and has the right to suppress basic human rights and freedoms in the country or in its certain parts.
According to the new Constitution, certain of the President’s decisions need approval from the Parliament or the Prime Minister although an order – a legal document issued by the President who is the Supreme Commander-in-Chief – does not require the Prime Minister’s approval (counter assignation) nor do the legal acts connected to the activity of the National Security Council or declaring/ending the state of war. These presidential powers are given in Articles 46, 73, 98 and 100 of the Constitution.
Giorgi Kverenchkhiladze, Parliamentary Secretary of the President of Georgia and a constitutionalist, stated on this matter: “Thinking that the presidential power of being the Commander-in-Chief is symbolic is not legally correct as long as the Constitution itself provides the President with multiple powers during a state of war. He has the power to issue an order on any matter he considers necessary. This order requires neither a counter assignation nor the Parliament’s approval.”
It is important to note that the presidential powers with respect to defence and security remained the same in the new edition of the Constitution. These are exactly those defence and security powers that the President had even during the existence of the presidential system. Therefore, there is no principal amendment in the defence and security sphere of the presidential powers. In addition, the new edition of the Constitution has actually reduced the powers of the President in some other directions and it is clear that some legislative amendments are needed to align the laws with the Constitution.FactCheck
studied the implications of the packet of amendments submitted by the Ministry of Defence to the Parliament.
With the acting legislation, the main advisor of the Supreme Commander-in-Chief is the Head of Joint Staff who governs and manages the Armed Forces and who, in turn, is appointed or released by the President. According to the bill submitted by the Government to the Parliament, however, the President will not approve the Charter of the Joint Staff whilst according to Part 6 of Article 14, the Head of Staff will be accountable to the Minister of Defence and not the President.
The bill presented by the Government includes the draft changes to the Law on Defence of Georgia. According to Subparagraph A of Part 1 of Article 8 of this draft, the National Security Concept of Georgia project will be presented to the Parliament for approval not by the President, as it is in the current legislation, but by the Government.
Further, there is also a change being made in the Law on Mobilisation. According to the bill: “The term of military conscription during mobilisation is defined by the Military Forces Mobilisation Plan approved by the Government of Georgia.” According to the current edition of Article 17, however, this issue is regulated by the President.
The Law on Defence of Georgia refers to the powers of the Security Council as well. Namely, according to Part 3 of Article 17, during an emergency, war, crisis or any other special situation, the interagency coordination of the national defence planning is governed by the State Security and Crisis Management Council that is subject to the Prime Minister and not the Security Council which is the President’s consultative body. It is noteworthy that the National Security Council is a body created by the Constitution for military revival and organising the country’s defence whilst the State Security and Crisis Management Council was created on 6 January 2014 by Government charter.FactCheck
contacted constitutionalist, Avtandil Demetrashvili, regarding this issue. He stated: “The presidential powers are being restricted on the legislative level. The presidential status of the Commander-in-Chief must be fed by the laws. It can be said that the given packet of legislative amendments is against the idea of the presidential institute as it is in the Constitution.”
Conclusion According to Irakli Gharibashvili, the bills prepared by the Ministry of Defence are only meant to continue the process of aligning the laws with the Constitution whereas presidential powers are not being restricted. FactCheck
analysed the powers of the President as the Commander-in-Chief with regard to defence and security. They turn out to be not only symbolic but very precise and important.FactCheck
studied that if the bill initiated in the Parliament does get approved, the powers of the President as the Commander-in-Chief will be restricted. The President will not approve the Charter of the Joint Staff, the Head of Staff will not be accountable to the President, the President will not be able to present the National Security Concept of Georgia project to the Parliament for approval, he will not be able to regulate the mobilisation plan of Georgian military forces and so forth. The President’s consultative body, the Security Council, becomes deprived of the power to govern the interagency coordination of the national defence planning during an emergency, war, crisis or any other special situation (or, at least, its power overlaps with the Prime Minister’s consultative body). The aforementioned power will be given to the Prime Minister’s consultative body, the State Security and Crisis Management Council.
It is erroneous to assume that amending the laws and restricting presidential powers in the security and defence spheres is necessary to align the laws with the Constitution for there is no need for principal amendments in this direction.Thus, FactCheck concludes that Irakli Gharibashvili’s statement: “…I am speaking of the amendments that have been implemented since the new Constitution came into force. There is no such thing as restricting one’s (Presidential) rights and strengthening another’s (Prime Ministerial),” is FALSE.